Bohemian Rhapsody Video Taken Down Again, This Time By The Drunk Guy Himself

from the easy-come-easy-go-indeed dept

Well, this is a fun twist. We just wrote about the story of now-world-famous drunk guy Robert Wilkinson, his poor Freddy Mercury impersonation, and the resulting takedown and reinstatement of the video by EMI. Now a commenter points us to the fact that the video has been taken down againa different version of the video has also been taken down, thanks to a copyright claim by... Robert Wilkinson:

The claim is, of course, bogus. Wilkinson doesn't have rights over anything in the video: he didn't film it, and the song belongs to EMI. It's likely that he just wanted to stem the tide of this embarrassing video, and knew that he could do so in a few steps with YouTube's takedown tool. Whether or not he believes he does have some copyright stake here is unclear, but hopefully he knows better than to pursue things further, because he could end up facing liability for copyfraud. Unfortunately, this is how notice-and-takedown systems work: free speech can be easily censored, at least temporarily, by anyone for any reason.

Copyright does not exist to save people from embarrassment, nor does it even apply in this case—but in the ownership culture of intellectual property, the average person seems to think they have some innate right to control every use of their image or even any reference to their existence. It's not like this will make a difference anyway: plenty of people have surely made copies of the video by now, and it'll be back soon enough (possibly with autotune, or synced to My Little Ponies clips). Sorry Robert Wilkinson: there's no escape from reality.

Well, he does have some control over his likeness. I am not sure that cop car video is considered "public place" video, and as a result, the police might not actually have the right to release it. Copyright? Not sure it's the right thing, but certainly it is the expedient way to get a takedown.

Copyfraud?

"..but hopefully he knows better than to pursue things further, because he could end up facing liability for copyfraud."

Bwhahahahaha

Thats a good one. Everyone knows there is zero practical reprecussions for filing false takedowns on material you dont own. Or does that only work in favor of the big media corps, and not the individual? Ah right, high and low court, I forget that all the time. One rule for the Lords, one rule for the Serfs.

Re:

I am sure it is public record. The newspapers everyday have arrested people in there. Mug shots are released all the time. Video is released as well.

"but certainly it is the expedient way to get a takedown."
Without the right to do so. So while it may be fast, it is wrong. And that's the point. Anyone can have free speech removed in a heartbeat, but it takes much longer to get it re-instated, and the damage to society has already been done.

Why wouldn't he have copyright on his performance?

He may not have copyright on the lyrics or possibly even the video of the performance, but I don't see why he wouldn't have a copyright on his performance itself. If I take video at a concert, the band doesn't suddenly lose their copyright.

Pretty good case, actually

I think you could make a pretty good case that he does actually own the copyright to the recording. Was it a creative work? Certainly: it's a creative reinterpretation of the song (aka a derivative work), and drunkenness does not preclude the creative element.

Was it fixed in tangible form? No question: the camera in the cop car took care of that.

Was the drunk guy the creator? I don't see any other candidates, and it certainly wasn't a work for hire. Maybe you could argue that the police officer had a hand in the creation through the act of turning on the camera, but at most Wilkinson and the officer would be co-creators.

The only real issue is that, as a derivative work the holder of the rights to the original also has an interest. But that's an issue to be settled between EMI and Wilkinson, as they would both hold different parts of the copyright to the viral video.

Re: Down?

Re: Re: Actually he does

I don't see how authorisation affects anything here. After all he did not authorise the cop's filming - which makes the cop's actions "unauthorised". The cop would, of course have copyright exceptions and fair use that would allow him to use his video for law enforcement purposes - but not for commercial artistic exploitation.

I believe the law is quite clear here. He performed a work - and that performance has sound copyright that is his and cannot be used (as an artistic performance) without his permission (and a compulsory licence from the owner of the compsition - presumably the estate of Freddie Mercury or the record label )

Re: Pretty good case, actually

If I take a picture of something, or someone, I own the rights to said picture. Same thing goes for video. Rights go to the "creator" or the person that takes the video. Since this was in a police car, and they can't claim any rights on the video (public record) the video is in fact public domain.

There was an article similar to this where some monkeys got ahold of a photographers camera and took some pictures. There was a big discussion on who owned the rights to the pictures. Since animals can't claim rights, I think the pictures ended up in public domain.

Re: Actually he does

I don't think so. Copyright doesn't exist until the work is fixed. You can have the right to create a performance of a previously fixed work. You can have a copyright on a recording of a performance, but the performance itself is not fixed, so there can't be a copyright on it.
Unless there's a written agreement to the contrary, the copyright to the video would be held by the operator of the camera, not the performer.

Which leads to another question. Given that the camera is fixed in place, and operating totally automatically, is there enough creativity in the recording to qualify for any copyright at all? It looks to me like there's a good case to be made that the only copyright involved is the songwriter's copyright on the original music.

If he was unaware that he was being recorded, weren't his rights to privacy violated by the camera in the police cruiser. If not then certainly when the video was made public. Is this something that happens in Canada often, that the police release the videos from inside the vehicle? This just screams breach of privacy to me.

Re:

You are correct about the likeness part except for one thing, if the publisher of the video has the copyright to the video itself and it is deemed news. News doesn't require a release. Otherwise it would.

Re: Re: Actually he does

The right to film and the right to distribute are 2 different things. Just because it was filmed doesn't mean it can be distributed. If it's not News, then they would have to have a signed release to use his likeness EVEN IF they own the copyright to the film itself.

You've gotta be kidding me. An April fools joke would have a hard time outperforming this joke. Like another commenter pointed out, when reality is this ridiculous, the onion needs to try harder to come up with something relatively ridiculous.

Re: Re: Pretty good case, actually

But everyone owns the rights to their individual likeness. Except in the case of News or something like a crowd scene where no individual likeness is distinguishable, the photographer owns the copyright to the work itself but has to have a release to distribute the work. As this sort of thing would hinder the press from being able to report the news in a timely manner (or sometimes not at all) News organizations are not required to get releases from a subject to publish the news. However the news loophole as it is know is abused by tabloids when they run paparazzi images of celebrities claiming that because they are famous the story is "news".

Re: Re: Actually he does

No, that's not how it works. The producer of the fixation of a performance might have additional rights of their own, but that doesn't negate the performer's rights over the fixation or his/her performance. This is basic Rome Convention. Moreover, copyright in a performance is entirely possible: among others, performers are vested with the exclusive rights to authorise or prohibit the fixation of their performace without their permission and the communication to the public of any fixation.

Finally, originality (creativity is not a legal term) is not a factor in related rights, only in copyright.

Re: Pretty good case, actually

Wasn't this filmed by a public utility for the purpose of safety and/or evidence in any futire proceedings and therefore owned by the State (??) and under the US Open Access rules (do you lot have privacy rules at all??) therefore owned by the Public for any use?

Also the idea that the guy has copyright on the film is bogus since he self evidently was incapax at teh time of performance and had no concious notion of what he was doing at the time, not to mention that the camera, whether fixed or otherwise, was not being controlled by himself either personally or for hire.

So, when is the CPRS (Canadian Performing Rights Society) going to sue this guy?

I severely doubt he paid the appropriate licensing fees before performing said public performance. Since he is claiming copyright over said performance, it seems like it would be a slam dunk (drunk) given that he has given CPRS all the evidence it needs by claiming said copyright on a work he doesn't own or have the rights or licenses to perform in public.

Point:
If we don't stop drunks from unauthorized singing in public, what's next? I'll tell you: public solicitation, public intoxication, public inebriation, public debilitation and finally public urination. There ought to be a law against such crimes against humanity.

Counterpoint:
Think of the children of all the unauthorized, unlicensed drunk singers who will rely on the copyright of their fathers (or mothers) and count on the residual income of that performance for many, many years to come, long after their inebriated parent has passed away. Come on people, didn't the children of said parent suffer enough not to be able to reap the financial reward that comes from such a tragic recording?